- - Wednesday, October 3, 2012

This past summer, a group of cheerleaders at Kountze High School in Kountze, Texas, decided to change their behavior towards opposing teams during sporting events. Instead of carrying banners with messages like “Kill the Lions” or “Pluck the Eagles,” the cheerleaders wanted to encourage both Kountze High School’s teams and the opposing teams. They wanted to be examples of good sportsmanship to the athletes and the parents in the stands. The cheerleaders decided that the banners that their athletes run through at the beginning of each sporting event would display encouraging Bible verses or messages.

The cheerleaders used their new run-through banners at the first three football games of the season. Players and fans of all the teams loved the encouraging messages. Then the Freedom From Religion Foundation, an anti-religion organization in Wisconsin, found out that the cheerleaders had committed the sin of displaying religious messages at high school football games. With one letter to the school district superintendent., the cheerleaders’ experiment in good sportsmanship was stopped. Kountze High School’s PA system blared that no student group could display any religious message at Kountze High School games. This ban was so broad that it would prevent many students sitting in the bleachers from wearing religious shirts or jewelry.

The cheerleaders and their parents, however, had a different idea. We at Liberty Institute looked into the case and found that not only were the cheerleaders’ messages acceptable at public high school football games, but that the school had violated the cheerleaders’ rights by prohibiting the signs. With this information, the cheerleaders and their parents asked us to help stop the school district’s censorship of the positive messages. Two days after the announcement had been made over Kountze High School’s P.A. system, Liberty Institute got a temporary restraining order, preventing the school from censoring the free speech and religious expression of the cheerleaders.

The Freedom From Religion Foundation (and some outside observers who have opined on the merits of the cheerleaders’ case against the school district without first learning the facts of the case) pointed to the Supreme Court’s decision in Santa Fe Independent School District v. Doe, which held that school-sponsored prayer at a public high school football game violates the Establishment Clause of the Constitution. They figured that settled the matter. The issues, however, in the Kountze cheerleaders’ case, Matthews v. Kountze Independent School District, are not the same. In fact, the two cases are nearly opposite.

Santa Fe Independent School District v. Doe involved a school-sponsored prayer, given by a school-selected student, over the school’s public address system, pursuant to a policy that explicitly encouraged prayer. Matthews v. Kountze Independent School District, on the other hand, involves the private speech of the cheerleaders, displayed on signs bought with private money, pursuant to a school policy declaring that student speech at football games is private speech not endorsed by the school district.

As the Supreme Court noted in Santa Fe Independent School District v. Doe itself, “[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.…The Religion Clauses of the First Amendment prevent the government from making any laws respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a prohibition on all religious activity in our public schools. Indeed, the common purpose of the Religion Clauses is to secure religious liberty.”

Securing liberty is also the purpose of a Texas state law that declares student speech at football games to be the students’ private speech, not endorsed or compelled by the state.

The distinction between the two situations is clarified by one observation: In Santa Fe Independent School District v. Doe, the school district wanted prayer; in Matthews v. Kountze Independent School District, the cheerleaders want to display a religious message against the wishes of the school district. One is government speech; the other is protected, private speech.

America is a land of religious liberty and free speech; government censorship of the cheerleaders’ messages at Kountze High School violates both. The cheerleaders are not school officials demanding that their students engage in religious conduct; rather, the cheerleaders are students freely speaking to their peers and parents and freely practicing their religion. Not defending them would be a travesty to the Constitution.

Mike Johnson is senior counsel at Liberty Institute. Justin Butterfield is an attorney at Liberty Institute.


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